Year: 2009 (Date of Decision: 8 October, 2009)
Forum,Country: Constitutional Court; South Africa
Standards, Rights: Reasonableness; Rights to water and sanitation
Summary Background: This case considers the lawfulness of a project the City of Johannesburg piloted in Phiri in early 2004 that involved re-laying water pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the six kiloliters per household monthly free basic water allowance.
Holding: The Court held that the right of access to adequate water protected under the Constitution did not require the State to provide upon demand every person with sufficient water, but rather required the State to take reasonable legislative and other measures to realize achievement of the right within available resources [para. 50].
In the Court’s estimation, the free basic water policy established by the City of Johannesburg, which charged consumers for use of water in excess of the free basic water allowance of six kiloliters, fell within the bounds of reasonableness [para. 9]. In elaborating on the reasonableness test and delineating the court’s role as regards the State’s positive obligations, the decision states, “the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways. If government takes no steps to realize the rights, the courts will require government to take steps. If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness…. Finally, the obligation of progressive realization imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realized” [para. 67]. The Court affirmed the democratic value of litigation on social and economic rights. It noted that the applicants’ case required the City to account comprehensively for the policies it has adopted and establish that they are reasonable [paras. 160-163].
On the issue of minimum core protection of the right to water, the Constitutional Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes “sufficient water”, as this is a matter best addressed in the first place by the government [paras. 56 and 61-68].
Additional Comments: This case reflects a deferential approach by the Court and in particular, a reluctance to interfere in matters it deems as falling within the executive and legislative spheres.
Link to Full Case: http://www.saflii.org/za/cases/ZACC/2009/28.html